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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Plymouth District Court

No. 2000-172

WILLIAM AND DEBORAH CROWLEY

v.

SHARON FRAZIER

December 31, 2001

Egge Law Office, of Danbury (William L. Egge on the brief), and New
Hampshire Legal Assistance, of Manchester (Kenneth J. Barnes on the brief and
orally), for the plaintiffs.

Gabriel Nizetic, of Plymouth, by brief and orally, for the defendant.

DUGGAN, J. This is an appeal by the defendant, Sharon Frazier (landlord), from a
decision by the Plymouth District Court (Kent, J.) awarding damages of $8,000 to
the plaintiffs, William and Deborah Crowley (tenants), based upon the landlords
violation of RSA chapter 540-A (1997). We reverse.

In December 1999, the tenants filed a "Petition Under RSA 540-A:4" on a form
provided by the district court. In a section of the form that states: "I complain
that I am in immediate threat of irreparable harm because," the tenants wrote:
"My landlord is in violation of the warranty of habitability pursuant to RSA
48-A:14." In a section of the form which states: "I respectfully request these
additional final orders," the tenants checked a box next to: "Find that my
landlord deprived me of quiet enjoyment of my property." Next to a checked box which
states: "Award damages to me in the amount of," the tenants wrote in
"$4,950.00." The tenants attached two pages to the petition entitled
"Continuation of Petition under RSA 540-A:4." There the tenants set forth
"specific facts . . . giving rise to a violation of the warranty of habitability and
thereby depriving the Tenants of quiet enjoyment of [leased] property." The tenants
alleged in considerable detail rodent infestation, plumbing problems, electrical problems,
a residual garbage problem, loose and falling ceiling plaster, leaking roofs and walls,
and structural problems. They calculated their damages by estimating a twenty-five percent
loss of use of the leased premises and multiplying that by the rent for three years
resulting in total damages of $4,950.00.

The district court denied the landlords motion to dismiss the petition and held
an evidentiary hearing. The court subsequently issued an order stating that the tenants
had made out a primafacie case of a violation of the warranty of
habitability. The court also ruled that because "RSA 540-A:4, VII(b) allows for
damages for a breach of [the] warranty of habitability or quiet enjoyment, . . . the
statute could serve as a basis of an action alleging these violations." The court
ruled that "violations of RSA 48-A:14; are incorporated into [RSA chapter 540-A], and
[found] that violations of RSA 48-A:14 sections; I, rodents and insect infestation; II,
defective plumbing; III, exposed wires; IV[,] roof leaks; V[,] falling plaster; VII[,]
unsound structure; and XI, an improperly installed heating device were proven." As
for damages the court found: "No actual monetary damages were proven. Thus the Court
must rely on the minimum mandatory statutory damages established by RSA 358-A:10."
The court ruled that the violations were willful for only a four-day period and assessed
damages "at the minimum statutory amount of $2000 per day for four days."

On appeal, the landlord asserts the trial court erred because the tenants failed to
prove sufficient facts to constitute a violation of RSA 540-A:2, and therefore they were
not entitled to statutory damages under RSA 540-A:4, IX. The tenants argue, however, that
the facts, asserted in their petition and later proved at the hearing, support the trial
courts conclusion that the landlord willfully breached their right to quiet
enjoyment and therefore violated RSA 540-A:2.

The trial courts interpretation of a statute is a question of law, which we
review denovo. Fichtner v. Pittsley, 146 N.H. ___, ___, 774 A.2d
1239, 1241 (2001). The starting point in any statutory interpretation case is the language
of the statute itself. Kaplan v. Booth Creek Ski Group, 146 N.H. __, __ (decided
November 20, 2001). Where the language of a particular statutory provision is at issue,
"we will focus on the statute as a whole, not on isolated words or phrases." Snow
v. American Morgan Horse Assoc., 141 N.H. 467, 471 (1996). "We will not consider
what the legislature might have said or add words that the legislature did not
include." Milford Lumber Co. v. RCB Realty, 146 N.H. ___, ___ (decided
September 28, 2001) (quotation and brackets omitted).

RSA 540-A:2 provides: "No landlord shall willfully violate a tenants right
to quiet enjoyment of his tenancy or attempt to circumvent lawful procedures for eviction
pursuant to RSA 540." The statute does not further define "a tenants right
to quiet enjoyment." The right to or covenant of quiet enjoyment is a common law
doctrine that "obligates the landlord to refrain from interferences with the
tenants possession during the tenancy." Echo Consulting Services v. North
Conway Bank, 140 N.H. 566, 568 (1995). In Echo Consulting, we held that a
"breach of the covenant of quiet enjoyment occurs when the landlord substantially
interferes with the tenants beneficial use or enjoyment of the premises." Id.
at 571. Based upon this holding, which extends the covenant of quiet enjoyment beyond mere
denial of actual possession, the tenants argue that the decrepit and unsanitary condition
of the house interfered with their use and enjoyment of the property as their home, and
thus their claim comes within the "right to quiet enjoyment" in RSA 540-A:2.

Echo Consulting involved a commercial lease. During the plaintiffs
tenancy, the landlord undertook a yearlong project to renovate property adjoining the
leased premises. Echo Consulting, 140 N.H. at 567. The plaintiff, a business
tenant, alleged the renovations caused occasional interruption of electrical service, made
a parking lot inaccessible and, due in part to the banks decision to install new
door locks, made the tenants access to the leased portion of the building
"obstructed and difficult at times." Id. The tenant argued that the
landlords actions obstructing access deprived it of beneficial use of the premises
for its business, and therefore constituted a breach of the covenant of quiet enjoyment.
We noted our agreement with those courts that "have extended the covenant [of quiet
enjoyment] beyond mere denial of actual possession" and remanded the case for a
determination of whether the landlord substantially interfered with the tenants
beneficial use of the premises. Id. at 572-73.

Here, the tenants asserted numerous violations of the statutory minimum housing
standards that resulted in unhealthy and hazardous living conditions. Although the trial
court specifically found that the tenants proved each of the violations, it denied the
tenants claim of twenty-five percent "loss of use of leased premises," a
ruling not challenged on appeal. Therefore the tenants failed to prove any loss which
interfered with their use of the leased premises. Cf. Doe v. New Bedford Housing
Authority, 630 N.E.2d 248, 255 (Mass. 1994) (holding loss of use of sidewalks,
streets, parking lots and recreational areas constitutes substantial interference with
beneficial use of apartment located in public housing project); Reste Realty
Corporation v. Cooper, 251 A.2d 268, 274-75 (N.J. 1969) (affirming trial courts
finding that regular flooding that made it necessary for business tenant to move meetings
to another site constituted breach of covenant of quiet enjoyment). Because the tenants
failed to prove that the landlord substantially interfered with their beneficial use of
the premises and thereby breached the covenant of quiet enjoyment, they failed to prove a
claim under RSA 540-A:2.

The trial court construed the right of quiet enjoyment under RSA 540-A:2 to include
much, if not all, of what is included in the implied warranty of habitability. To affirm
that ruling would be inconsistent with two other sections of RSA chapter 540-A.

First, RSA 540-A:4, VII(b) expressly authorizes a court to award damages for
"violations of RSA 540-A,[or a] breach of the warranty of habitability." The
inclusion of both the statutory claims and the implied warranty of habitability in this
section suggests that the legislature considered them to be different claims.

We ordinarily construe a general term in a statute in light of related, specific terms.
See, e.g., In re Justin D., 144 N.H. 450, 454 (1999); seealsoState v. Wilson, 140 N.H. 44, 45 (1995) ("General words in a statute that
follow specific words . . . are construed to include only items of a similar character to
the specific ones mentioned."). In RSA chapter 540-A, the enumeration of certain
specific acts prohibited implies that the general prohibition should have a similar scope.
The specific acts in RSA 540-A:3 are unlike the allegations in this case and more like the
allegations in Echo Consulting. None of the specific acts in RSA 540-A:3 suggest
that the right to quiet enjoyment under RSA 540-A:2 should be construed to include the
tenants claim in this case.

This, of course, does not mean that tenants whose premises are unsafe and unsanitary,
and thus unfit for living, do not have a remedy. The implied warranty of habitability
protects tenants against structural defects. Walls v. Oxford Management Co., 137
N.H. 653, 661 (1993); seealsoDoe, 630 N.E.2d at 253-54. A defect
that renders premises unsafe or unsanitary, and thus unfit for living therein, constitutes
a breach of the implied warranty of habitability. Kline v. Burns, 111 N.H. 87, 93
(1971). Where, as here, a material or substantial breach of the implied warranty of
habitability is found, "the measure of the tenants damages is the difference
between the agreed rent and the fair rental value of the premises as they were during
their occupancy by the tenant in the unsafe, unsanitary or unfit condition." Id.
at 93-94; seealso RSA 540-A:4, VII(b). In this case, however, the trial
court found that there were no monetary damages. Although not mentioned by the district
court in its order, the record shows that the tenants had already negotiated a reduction
in their rent because of the condition of the premises.

Upon finding no monetary damages, the district court resorted to the liquidated damages
provision in RSA 540-A:4, IX. Tenants may only be awarded remedies available under this
section of the statute, however, when their landlord violates "RSA 540-A:2 or any
provision of RSA 540-A:3." RSA 540-A:4, IX. As noted above, the tenants claim
does not constitute a breach of the covenant of quiet enjoyment under RSA 540-A:2, and the
tenants did not make a claim under RSA 540-A:3. Therefore, the remedies under RSA 540-A:4,
IX are simply not available in this case.